The right to life as an alternative avenue for the enforcement of the right of access to adequate housing in Zimbabwe

• Jurisdiction: South Africa
• Published date: 12 October 2020
• Date: 12 October 2020
• Author: Mavedzenge, A.
• Citation: (2020) 31 Stell LR 344
• Pages: 344-373

344

THE RIGHT TO LIFE AS AN ALTERNATIVE

AVENUE FOR THE ENFORCEMENT OF THE

RIGHT OF ACCESS TO ADEQUATE HOUSING

IN ZIMBABWE

Justice Alfred Mavedzenge

BA LLB LLM PhD

Researcher at the Democratic Governance and Rights Unit, University of Cape Town

Legal Advisor at the International Commission of Jurists*

Abstract

The Constitution of Zimbabwe, 2013 (“Constitution”) does not expressly

guarantee every person the right of access to adequate housing, yet the

country is bedevilled with an acute national housing crisis. However, the

Constitution guarantees the right to life for every person and requires that

the rights enshrined in the Bill of Rights be interpreted in a manner which

best protects and promotes the constitutional value of human dignity. It also

requires courts to interpret constitutional rights in a manner which promotes

the fullment of international obligations arising from treaties and conventions

which Zimbabwe has signed and ratied. The Constitution also requires

courts to interpret constitutional rights in a way that incorporates state

policy objectives enshrined in Chapter 2 of the Constitution. In this article,

I engage with these constitutional rules of interpretation and demonstrate

that they allow the right to life to be interpreted in a way that incorporates

the right of access to adequate housing in Zimbabwe. Given that Zimbabwean

courts are yet to develop their own jurisprudence on the interpretation of

the right to life, I make considerable reference to foreign case law from

comparative jurisdictions, namely South Africa and India, although I also

critically engage with counter-arguments from other jurisdictions.

Keywords:

Housing, Constitution of Zimbabwe, right to life and human dignity

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(2020) 31 Stell LR 344

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RIGHT OF ACCESS TO ADEQUATE HOUSING IN ZIMBABWE 345

1 Introduction

Zimbabwe signed and ratied1 the International Covenant of Economic Social

and Cultural Rights (“ICESCR”),2 an international convention dedicated to

the recognition and advancement of economic, social and cultural human

rights. In terms of Article 2(1) of this Convention, Zimbabwe is obliged to

ensure that its domestic legal system protects and gives effect to all the rights

recognised under this Covenant so that the people in Zimbabwe can enforce

these rights in the domestic courts.3 The most effective way of domesticating

these rights is by entrenching them in the Constitution of Zimbabwe, 2013

(“Constitution”).4

Between 2010 and 2013, Zimbabwe embarked on a constitution-

making process, and there was an expectation amongst citizens that the

new Constitution would embrace and domesticate the fundamental human

rights recognised under the ICESCR. Several human rights recognised

in this Convention were domesticated by way of entrenching them in the

Constitution’s Declaration of Rights.5 However, the Constitution does not

explicitly guarantee for everyone a fundamental right of access to adequate

housing. It guarantees the fundamental freedom from arbitrary evictions,

which is an element of the right of access to adequate housing,6 but it does not

give persons who are living under inadequate housing conditions the right to

demand that adequate housing be made accessible to them. The Constitution

also provides that the state shall endeavour to make adequate housing

accessible to everyone, but this is set out in section 28 as a constitutional

* This article is derived in part from the author’s PhD dissertation: JA Mavedzenge An analysis of

how Zimbabwe’s international legal obligation to achieve the realisation of the right of access to

adequate housing can be enforced in domestic courts as a constitutional right, notwithstanding

the absence of a specic constitutional right of every person to have access to adequate housing

University of Cape Town (2018).

1 On 13 May 1991.

2 (Adopted 16 December 1966, entered into force 3 January 1976) 3 UNTS 993.

3 UN Committee on Economic, Social and Cultural Rights (CESCR) General Comment No 9:

The Domestic Application of the Covenant, 3 December 1998, UN Doc E/C.12/1998/24 para 2.

4 This is because it would give the right prominence by virtue of the supremacy of the Constitution

and this would protect the right from being violated or manipulated through other laws or

practices. See s 2 (1) of the Constitution of Zimbabwe.

5 These include: the right to health care, provided for in s 76; the right to education, provided for

in s 75; the right to water and food, provided for in s 77; the right to use language and participate

in the cultural life of choice, provided for in s 63(a); the right of elderly persons to receive

social security, provided for in s 82; and the fundamental freedom from arbitrary eviction that is

guaranteed in s 74.

6 See UN Committee on Economic, Social and Cultural Rights (CESCR) General Comment No 4:

The Right to Adequate Housing (Art. 11 (1) of the Covenant), 13 December 1991, UN Doc

E/1992/23 para 8(a) (“General Comment No 4”).

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